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Saturday 1 October 2016
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Employment law and the JCPTGP - a pregnant clause?

Human Resources

Malcolm Wallace
Practice Manager

Malcolm is manager of a training practice in Halesowen, West Midlands. He was a medical administrator in the Army for 31 years until 1994. He was a practice manager in Reading before taking up his present position in 1996. Away from work he enjoys some gardening, reading foreign holidays, but mainly spending time with his granddaughter. He is also Secretary of the Shropshire Branch of the RAMC Association.

Employment laws give the pregnant employee rights to paid time off for antenatal care and state that she is "not to be unreasonably refused time off during working hours for antenatal care and to be paid during that time". To be granted these rights she must:

  • Be pregnant.
  • Have an appointment made on the advice of a doctor, registered midwife or registered health visitor.
  • Except in the case of the first appointment, be able to produce confirmation of the pregnancy and an appointment card or other proof of the appointment.

Antenatal care
There is no statutory interpretation of the term antenatal care, and precedence does exist that this can include relaxation classes. As can be seen from these statements and with a normal (low-risk) pregnancy, we are already looking at the registrar missing upwards of 11 sessions of clinical work within the practice if their appointments clash with clinic times, and they must be lost, as it is illegal to alter normal working times or to ask or insist that any employee make up the time lost through attendance at antenatal appointments, although this would seem to be in conflict with the requirements of the Vocational Training Regulations (VTR).

Maternity leave
If we now look at what happens to contractual obligations when the registrar goes on maternity leave, we will find that, amongst other things, she will continue to accrue an entitlement to annual leave under the EU Working Time Directive, and this I feel is the main point of conflict in regard to the correct treatment of the employee (the registrar) by a conscientious employer (the practice) and the requirements of the Deanery/JCPTGP (Joint Committee on Postgraduate Training for General Practice). For every extension they require in her service to complete training and be signed off by the trainer, there will be a further increase in the accrued numbers of days of annual leave.

In one recent case, I have been given to understand, it was suggested that the registrar should finish her contract on the due date, that she should forego the annual leave accrued whilst on maternity leave and be paid additional salary for foregoing the annual leave contrary to the Working Time Directive, which states: "The leave allowance may not be replaced by a payment in lieu, unless the employee leaves employment during the course of the leave year". This of course raises another point – the practice is the employer, but the JCPTGP dictates via the Deanery and obviously feels that it can vary the length of the employment! We also need to establish what is the registrar's leave year, and does the fact that she may be moving to another practice to continue training constitute "leaving employment" when she is still being controlled by the Deanery/JCPTGP?

Contentious issues
Now I will pose perhaps what may appear to be a very contentious solution to all of these (and many other) problems associated with administering and employing registrars!

Firstly, the current contracts made between registrars (both male and female) and practices should be scrapped and replaced by a contract with the appropriate Strategic Health Authority (SHA) in a Mobile Grade. This effectively would mean that the SHA would be the employer and dictate through the Deanery the actual place of employment, which can be varied and would enable the Deanery acting on behalf of the SHA to say: "From the first Wednesday in February you will be working at Anytown Health Centre with Dr Smith as your trainer, and from the first Wednesday in August at Loamshire Surgery with Dr Brown."

The responsibility for the HR issues (including ensuring that CRB checks have been completed, supplementary list applications made and occupational health clearance given), and monthly payment of the registrars would rest with the employer/Deanery – and I would suggest that this should be the HR department of the SHA and that the only administrative responsibilities the practice should have in respect of the registrar would be to inform the HR department of any occurrences that affect the employment of the individual registrar (sickness, maternity issues or either annual or study leave that had been approved by the trainer).
 
Secondly, to accommodate the legal requirements associated with female registrars becoming pregnant/having maternity leave, or other female and male registrars having prolonged sickness, the JCPTGP should issue guidance on the minimum number of clinical sessions after which it considers that a trainer should be in a position to "sign-off" a registrar. It may well be that a registrar leaving to go on maternity leave four-and-a-half months into her final placement could have her competence certified and at the end of her maternity leave be in a position to take up a GP post without any further training, providing she has of course obtained her membership and satisfied the JCPTGP in all other respects and has not had any other noncontractual time off in excess of the six weeks allowed over the three-year training period in the VTR.

The contracts signed should state that they are for "x months" or until such time as the employee has satisfied the requirements of the JCPTGP. It is appreciated that it is not possible to change the world overnight, but perhaps the foregoing will be food for thought and might just provoke some changes to a system that is currently very cumbersome to administer at practice level and, from the employment/legal liability point, leaves a lot to be desired.

In conclusion, the following two hypothetical questions are posed:

  1. If a female registrar ever felt so hard done by as to make a case to an industrial tribunal about her treatment as an employee on her return from pregnancy, had to work more days than she had expected, and as a result missed out on taking up a previously arranged appointment because she was unable to start on the agreed date, and also felt that she had been discriminated against because she was female and had been pregnant, who would be responsible for any settlement awarded?   
  2. Obviously the answer, as things are at present, is the practice, but would the NHS reimburse the practice for its financial losses (costs and the award)? Maybe. But even if it did, what about the impact of the tribunal findings on the practice's good name and standing within the community?

I wouldn't want to be the practice manager of the practice it happens to, and I believe it's not a case so much of if, but of when!